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Assisted Decision-Making (Capacity)

The Assisted Decision-Making (Capacity) Act 2015 was signed into law by President Michael D Higgins on December 30th 2015.

This ground-breaking legislation will result in significant improvements in the lives of persons with intellectual disabilities as their ability to make decisions for themselves will be enshrined in law.

The legislation also demonstrates a seismic cultural shift away from a paternalistic and ‘best interests’ approach towards persons with intellectual disabilities to a right-based approach of choice, control and consent.

The new Act also removes a significant barrier to ratification of the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

What is Capacity?

Capacity relates broadly to decision making and a person's ability to do so. When we are discussing capacity we will look at two different ideas, legal capacity and mental or decision-making capacity. Full explanation of Capacity can be viewed in the Inclusion Ireland Capacity Fact Sheet.

Legal Capacity is a recognition that all persons have a right to make decisions and have those decisions recognised regardless of disability.

Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) says that countries "recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life".

Mental Capacity (sometimes called Decision-Making Capacity) is more closely aligned to mental functioning and intelligence. Under this process a person who is found to lackcapacity may have their rights to make decisions curtailed or substituted to another person.

Practical examples of the law in action are listed below:

(a) Medical Decisions

"Every adult patient is presumed to have the capacity to make decisions about their own health care. As their doctor, you have a duty to help your patients to make decisions for themselves by giving them information in a clear and easy-to-understand way and by making sure that they have suitable help and support. Patients have the right to have an advocate of their choice during discussions about their condition and treatment. " (pg 10)